In Final Stretch Of Drafting Of WIPO Treaty For The Blind, Tensions High

Pressure mounted as delegates at the World Intellectual Property Organization today engaged in what was planned to be the final day of committee negotiations on the text of a treaty on copyright exceptions for the blind. The ultimate outcome of the negotiations depends on the convening of a diplomatic conference, [corrected] which could yield an instrument facilitating access to reading material by visually impaired and print-disabled persons.

The issues under debate are multiple and complex and countries by the end of the afternoon were still trying to get a clear view of each other’s positions. At press time, the mood was bleak and several delegates admitted their pessimism.

This morning a new draft text [pdf] dated 20 November was issued, showing the results of yesterday’s discussions on the text.

The twelfth paragraph of the preamble now is free of brackets. The 19 November version of the preamble [pdf] included a proposal by the African Group that the instrument be consistent with the Berne Convention, while the European Union preferred a mention of other international conventions as well. The new paragraph recognises “the importance of the international copyright system and desiring to harmonize exceptions and limitations with a view to facilitating access to and use of works by persons with visual impairments/print disabilities.”

In Article A of the draft treaty, which provides definitions of terms, the chapeau of the paragraph on “authorized entity” brackets has been removed, but the secretariat said this action was taken on a preliminary basis as the African Group was consulting and considering this change.

Article Bbis on the nature and the scope of obligations under the treaty/instrument was left entirely bracketed during the “inter-sessional” meeting on the treaty held from 17-19 October tasked with advancing work on the draft text (IPW, WIPO, 19 October 2012).

Brazil, the European Union, India, Nigeria and the United States agreed to work on language for Article Bbis between the October meeting and the 25th session of the Standing Committee on Copyright and Related Rights (SCCR) this week from 19-23 November. The article now contains a set of principles of application which delegates have to ponder in order to develop a text later, the WIPO secretariat said.

Article E on importation of accessible format copies remains the same, except that “a beneficiary person” became “beneficiary persons” in the last line.

Article G, which dealt with relationship with contracts, and which heading into yesterday was entirely bracketed for lack of agreement (IPW, WIPO, 20 November 2012), was “unanimously” deleted from the text, according to the secretariat.

WIPO Assistant Director General Trevor Clarke (Culture and Creative Industries Sector) gave another push to the delegates to find agreement this morning as he took the floor to urge them to give their negotiators “maximum flexibility” to reach decisions during the day. He asked country delegates to “bear in mind the objective of this treaty is to do something in the interest of the visually impaired persons.” He also said the interests of rights holders had to be taken into consideration. “We are running out of time,” he said. Delegates were expected to work well into the evening.

Anything Remains Possible, Including a Collapse, Some Say

At the end of the afternoon, according to sources, everything was still possible, but the mood was not upbeat. According to some sources, a set of differences had to be breached and positions softened.

In particular, the issue of the so-called three-step test was on most lips in the corridors. This refers to a set of conditions to be met to grant exceptions to copyrights. At stake is the interpretation of this test, which stems from the Berne Convention for the Protection of Literary and Artistic Works and is also present, with a broader application, in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), according to sources.

The African Group has said that they did not want a reference to this test in the treaty, according to several developing country sources. One of the reasons for this position is that TRIPS recognises the special needs of least developed countries (LDCs), which do not have to implement the TRIPS provisions until 2013. Under the current conditions, if an obligation such as the three-step test was including in the treaty, that would request LDCs to apply an obligation which they are not bound to apply at the moment, according to the African Group. LDCs are in the process of requesting an extension of that period at the WTO (IPW, WTO/TRIPS, 12 November 2012).

Group B developed countries, and in particular the United States and the European Union, according to sources, are adamant that the instrument contains references to the three-step test. Developed countries have said that the rights of creators should not be jeopardised by the instrument. The tensions were high this afternoon, with a developed country delegate telling Intellectual Property Watch that the chances of failing were increasing.

Among other issues under discussion this week are the nature and the scope of obligations, the legal protection of technological measures against circumvention, and authorised entity.

India also had a concern about the newly adopted amendment of its copyright law [pdf], which contains exceptions that go further than what the blind treaty is expected to provide, and addresses a broader base of “persons with disability,” according to sources. The country is worried that the discussed potential treaty may restrict exceptions and limitations under the current national legislation, the sources said.

The WIPO director general opened the meeting with an appeal to delegates to “rise sufficiently above your national positions” (IPW, WIPO, 19 November 2012) and insisted that the hopes are high in the visually impaired community that a treaty be negotiated. It remains to be seen if this message can be heeded.

Representatives of the Blind: Still Hopeful

Dan Pescod, vice chair of the World Blind Union’s Right to Read campaign, told Intellectual Property Watch that the first two days of the SCCR showed a constructive atmosphere although their information could only be second-hand since only delegates had access to the text negotiations.

According to Pescod, developing countries will generally benefit more than developed countries if the treaty is effective, as they will be receiving more books than developed countries. “Developing countries will be the importing countries by and large” and developed countries will be the exporters, he said.

The World Blind Union “is not here to get into debates on copyright theory and wide copyright discussions,” he said. “What we do want to happen is that each country can be protected so that it can either keep the national law it already has for print-disabled people, or implement national law for print-disabled people.”

“We support countries like India” which want to insure that they have flexibilities in their own national law, he said. “We say the treaty should be flexible enough to allow this to happen but it should not be prescribing this for everybody because in that way lies disaster,” he said. The treaty should allow countries to go beyond the provisions of the treaty in their national legislation, he said. The WBU is not talking about other issues, such as translation or audiovisual, he said. The WBU’s request is “same book, same day, same price,” Pescod said.

The tough, complex conversations have to happen, according to WBU members, as “in the past they often have not happened at all, been put aside, and we kept coming back.” It might appear more complex, but it is part of the journey to get to the end, they said.

“We have not yet put the champagne in the fridge and we are agonising over whether we bother to or not,” they said. “The champagne is sitting on the shelf.”

Comments

There have been comments in SCCR25 interventions and elsewhere that the requirements of the current SCCR25 proposal go beyond what is required in the US Section 121 Chafee Amendment especially with regards to record keeping. The US exception DOES require at 121d2 that that either prior registration with the LOC/NLS or written certification from a doctor/specialist be obtained. The current proposal at Article A only says that an AE can establish its won “rules and procedures” “that the persons it serves are beneficiary persons”.

The Bookshare.org form for such establishing of disability in compliance with US Copyright Act Section 121d2 is available here:

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[…] The WBU supports the need to leave it to the countries to decide if they want to go beyond what the treaty may provide for. They have commented: “What we do want to happen is that each country can be protected so that it can either keep the national law it already has for print-disabled people, or implement national law for print-disabled people.” The WBU does support countries like India, which wants to ensure that they have flexibilities in their own national law. The WBU is not talking about other issues like translation or audiovisual works (such as movies or music). The WBU’s request is “same book, same day, same price,” said Dan Pescod of WBU to IP Watch. […]

[…] The WBU supports the need to leave it to the countries to decide if they want to go beyond what the treaty may provide for. They have commented: “What we do want to happen is that each country can be protected so that it can either keep the national law it already has for print-disabled people, or implement national law for print-disabled people.” The WBU does support countries like India, which wants to ensure that they have flexibilities in their own national law. The WBU is not talking about other issues like translation or audiovisual works (such as movies or music). The WBU’s request is “same book, same day, same price,” said Dan Pescod of WBU to IP Watch. […]

[…] The WBU supports the need to leave it to the countries to decide if they want to go beyond what the treaty may provide for. They have commented: “What we do want to happen is that each country can be protected so that it can either keep the national law it already has for print-disabled people, or implement national law for print-disabled people.” The WBU does support countries like India, which wants to ensure that they have flexibilities in their own national law. The WBU is not talking about other issues like translation or audiovisual works (such as movies or music). The WBU’s request is “same book, same day, same price,” said Dan Pescod of WBU to IP Watch. […]